When lawsuits are filed in Federal Court there is early neutral evaluation instead of mediation. Here is an example of a premises liability statement I submitted in a case that was successfully resolved. If you have suffered a personal injury due to someone else’s negligence please call me for a free consultation.
PLAINTIFF’S EARLY NEUTRAL EVALUATION STATEMENT
The plaintiff in the above-entitled action, Mary, by and through her attorney, David Polow, submits the following early neutral evaluation statement pursuant to Rule 16.1(h) of the Local Rules of Civil Procedure:
1. Brief Statement of the Facts. On February 1, 2017, Mary was a 18-year-old freshman attending college. She enrolled in the fall semester in 2016 and did well in her fall semester classes. As a first year student, she was required to live on campus.
Defendant operated the food concessions at the college during the 2016-2017 academic year.
On February 1, 2017, Mary went to a snack bar on campus to have a meal before class. The snack bar was operated by defendant food service company pursuant to a contractual agreement it had with the college. There is a big overhead sign listing menu items above the line that students stand in to order and receive their food. As Mary was standing in line, an employee of defendant who was working at the snack bar attempted to change the large overhead sign from the breakfast menu to the lunch menu, while standing on a ladder. The breakfast menu is on one side of the sign and the lunch menu is on the other. The sign is suspended from the ceiling. As the employee attempted to change the menu by moving the sign, it fell and landed on Mary’s head. She was knocked backward and someone caught her. She was very dazed and everyone was asking her if she was alright. One of the people who work there told her it had fallen down the week before too.
It was a gigantic steel sign and obviously pretty heavy. I have attached a photograph of the sign to this statement.
After being clocked by the sign, Mary sat down. In her own words, she was “very dazed, very out of it, really wasn’t sure what was going on or what had just happened.”
After sitting down for an undetermined amount of time, Mary went back to her dorm and called her dad on the way. Her dad was very concerned and said that she needed to tell some friends about what happened and that they should keep an eye on her or he was going to drive up there and get her. Mary went to the health clinic later that day, where a cursory examination was done. Mary was planning on going home for school vacation in a few days anyway, so she waited until she returned home to receive further medical treatment. A log of Mary’s treatment is attached as Exhibit B to this statement.
While Mary suffered headaches prior to enrolling at the college in September 2016, they were far less severe and less frequent than before suffering a concussion on February 1, 2017. Mary suffered no headaches at all from the time she began school at the college in September 2016 up until suffering the concussion on February 1, 2017, a period of approximately five and a half months.
Mary was prescribed various medications for dealing with her headaches and was referred to several specialists. While Imitrex helps alleviate the severe pain of the headaches, it causes severe side effects as well and Mary only takes it when she absolutely has too.
The headaches are completely debilitating. Mary described the headaches as follows in her deposition:
Right now they sit right in the frontal part of my head, right between my eyes. They pound, they stab and sometimes just ache.
Mary also relates that the headaches radiate to the side and are affected by light, sounds and smells. At times she gets nauseous, dizzy and tired.
Ultimately, Mary was evaluated by a neurologist. The doctor started treating Mary with Botox injection. The results were very favorable and Mary continues to receive Botox injections approximately every four months. The cost of the Botox injections is $651.00. Presuming Mary receives three injections a year, the annual cost will be $1,953.00 in current dollars. Mary’s life expectancy is 58 years and therefore conservatively the future cost of Botox injections will be $113,274.00. The approximate cost of medical bills related to treatment rendered to Mary is $32,701.35. It has been difficult to obtain some bills from some of the providers.
The neurologist conducted a permanency evaluation. The doctor attributes Mary’s current headaches to the trauma that occurred on February 1, 2017. He noted the following in his report:
Chronic post traumatic migraine, occurring as a direct result of head trauma sustained when she was struck on the left frontal region by a sign in February of 2017. Based on a clinical course, it is my opinion that the patient’s headaches are permanent in nature, and she will require ongoing treatment with Botox indefinitely. According to AMA guidelines the patient has a 10% permanent impairment of a whole body as a result of the post traumatic headaches. The degree of impairment is derived by the American Medical Associations guidelines for post traumatic/post concussion headache.
2. Legal and Factual Issues. Plaintiff contends that defendants are negligent in the design, installation and operation of the sign. Obviously, Mary did nothing wrong as she stood in line to order food. Defendants were negligent in both making sure the sign would not fall as well as not clearing the area below the sign while the employee took a minute or two to change the sign from one side to the other. Somehow, defendants are claiming that Mary was comparatively negligent and that she assumed the risk of her injury. Plaintiff views this as a clear liability case. As noted in the doctor’s report, Mary suffered a 10% permanent impairment of her whole body as a result of defendant’s negligence. She will require Botox injections for the remainder of her life that will cost more than $100,000.00. The existing medical bills are more than $32,000.00. She was forced to withdraw from classes during the spring semester of 2017 as a result of her headaches. Therefore, she was required to incur additional tuition and room and board expenses since she was unable to graduate in four years due to the concussion that was caused by defendant’s negligence.
No doubt defendants will argue that Mary suffered a pre-existing condition because she suffered a milder form of headaches prior to February 1, 2017. Her medical records are clear that she suffered no headaches at all for five and a half months prior to February 1, 2017. She has expert testimony to support that her headaches were far worse after suffering her concussion than they were prior to the time she began school in September 2016. The pre-existing issue is the main point of contention in this litigation and if resolved would facilitate a settlement.
3. Party Representative and Attorney. Plaintiff will be represented at the early neutral evaluation session by her attorney, David Polow.
4. Status of Settlement Discussions. Defendant offered the sum of $7,500.00 to resolve the lawsuit. Plaintiff countered by requesting the sum of $250,000.00 to resolve the lawsuit.
5. Conclusion. It is plaintiff’s position that this is a clear liability lawsuit against the food service company and the college, leaving the issue of how much compensation Mary is entitled to. Mary has been left with a permanent impairment, as documented by her treating neurologist. Her 10% whole body impairment is significant as well as her future medical expenses for Botox injections. This was a preventable incident and Mary’s request for $250,000.00 is reasonable, given the severity of her damages.